Filed 2/9/22 P. v. Prasad CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge. Reversed and remanded with directions.

Arielle N. Bases, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Charles C. Ragland and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.

In 2005, Dharmendra Prasad pled guilty to possessing cocaine in exchange for probation. Two years later he admitted violating the terms, and the judge revoked his probation. The failure to complete probation successfully exposed him to deportation. (See Estrada v. Holder (9th Cir. 2009) 560 F.3d 1039, 1040-1041.)

In 2019, while in Immigrations and Customs Enforcement (ICE) custody, Prasad filed a motion under Penal Code sections 1016.5 and 1473.7 seeking to set aside his guilty plea because he wasn’t aware of the immigration consequences of his guilty plea. The trial judge denied the motion, but we reversed and remanded for rehearing. On rehearing, the judge again denied the motion.

Prasad argues the judge erred because he relied on inaccurate facts and made his decision without considering allegedly crucial evidence. We reverse and remand with directions.

I

FACTS

On July 19, 2005, the Riverside County District Attorney charged Prasad with possessing cocaine (Health and Saf. Code, § 11350, subd. (a)) and driving with a suspended license. (Veh. Code, § 14601, subd. (a).) They also alleged he had a prior prison term conviction. On December 15, 2005, he pled guilty to possessing cocaine and admitted he had a prior prison term conviction. In exchange for his plea, he received 36 months’ probation under Proposition 36. The judge dismissed the charge of driving without a license in the interest of justice. When accepting Prasad’s plea, the judge held up a “yellow form,” and asked him whether he’d gone over it with his attorney. Prasad responded yes. There was no further on the record advisement of immigration consequences, no clarification what the yellow form was, and no further questioning regarding whether Prasad understood the contents of the form.

In August 2007, Prasad was convicted of making criminal threats. (Pen. Code, § 422, unlabeled statutory citations refer to this code.)

In October 2007, Prasad admitted to violating the terms of his probation. At the hearing on this violation, Prasad’s attorney repeatedly noted that Prasad was seeking a sentence of less than a year because he “believe[d] that by sentencing him on this case alone to a year or more, would end in deportation.” In response the judge sentenced him to 180 days, with 180 days’ time served, and terminated his probation.

Years later, in September 2019, Prasad moved to vacate his conviction under sections 1016.5 and 1473.7. In October 2019, the trial judge denied the motion without appointing Prasad counsel and by holding a hearing without his presence.

Prasad appealed, and we reversed and remanded with directions to appoint Prasad counsel and hold another hearing on the motion. (People v. Prasad (Oct. 9, 2020, E073921) [nonpub. opn.] [2020 Cal.App. Unpub. Lexis 6613; 2020 WL 6018704].)

On remand, the trial judge appointed counsel and held a hearing, again without Prasad’s presence. In March 2021, the trial judge again denied the motion because he found Prasad signed a plea form which advised him that his plea may have immigration consequences and because he acknowledged the same on the record. The judge also noted “this was not the defendant’s first conviction,” and that “in the instant matter, he had not only the drug charge, but he had a 667.5(b) prior,” referring to the 2007 conviction for a violation of section 422. Based on this, the judge opined “[w]ere he to go forward with his trial and the strike prior was alleged, he would have been statutorily ineligible for probation. . . . Moreover, were he to go forward with trial and the People proved up the prison prior, it would have been a year added to the time that he got.” Based on this, the judge concluded Prasad’s deal “looks like a very rational disposition,” and “I do not find the defendant’s averments that he would not have entered into this disposition to be remotely credible.”

Prasad filed a timely appeal.

II

ANALYSIS

Prasad argues the trial judge erred by relying on incorrect facts, and otherwise should have granted his motion to withdraw his plea and vacate his conviction because he established he did not meaningfully understand or knowingly accept the immigration consequences of his 2005 plea.[1] We agree the trial judge’s ultimate conclusion was based on an incorrect understanding of the timeline, and under independent review determine Prasad’s motion should have been granted.

Section 1473.7, subdivision (a)(1), allows anyone not in criminal custody to file a motion to vacate a conviction or sentence if “[t]he conviction or sentence is legally invalid due to prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty.” (People v. Rodriguez (2021) 60 Cal.App.5th 995, 1003.) Where a party moves to vacate their conviction or sentence under section 1473.7, the moving party must show only “that one or more of the established errors were prejudicial and damaged his ‘ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of [his] plea.’ ” (People v. Camacho (2019) 32 Cal.App.5th 998, 1008-1009 (Camacho); see People v. Mejia (2019) 36 Cal.App.5th 859 (Mejia).) A court should vacate a plea if “the defendant simply proves by a preponderance of the evidence a ‘prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere.’ ” (Mejia, at p. 871.)

A defendant establishes prejudice where they show “ ‘ “it is ‘reasonably probable’ the defendant would not have pleaded guilty if properly advised.” ’ ” (People v. Martinez (2013) 57 Cal.4th 555, 562 (Martinez), quoting People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 210; see Camacho, supra, 32 Cal.App.5th at p. 1010 [holding “[t]he principles found in Martinez and Lee [v. United States (2017) 137 S.Ct. 1958, 1966] apply equally to a prejudice analysis under section 1473.7”].) “[T]he test for prejudice considers what the defendant would have done, not what the effect of that decision would have been.” (Martinez, at p. 564.)

In order to meet their burden to show prejudice, a moving party must at minimum “provide a declaration or testimony stating that he or she would not have entered into the plea bargain if properly advised.” (Martinez, supra, 57 Cal.4th at p. 565.) Once they provide such a declaration “t is up to the trial court to determine whether the defendant’s assertion is credible, and the court may reject an assertion that is not supported by an explanation or other corroborating circumstances.” ([i]Ibid.) In assessing the credibility of a moving party’s claim they wouldn’t have entered a plea but for some error, a court may look at a number of factors, including the moving party’s history with the United States, the length of their residency, their family ties here versus in their country of origin, and the strength of the evidence supporting the underlying conviction. (See Mejia, supra, 36 Cal.App.5th at p. 872.) A court should also look at “the importance the defendant placed on avoiding deportation, the defendant’s priorities in seeking a plea bargain, and whether the defendant had reason to believe an immigration-neutral negotiated disposition was possible.” (People v. Vivar (2021) 11 Cal.5th 510, 530 (Vivar).)

When reviewing decisions under section 1473.7, we exercise our “ ‘ “independent judgment to determine whether the facts satisfy the rule of law.” ’ ” (See Vivar, supra, 11 Cal.5th at pp. 523-527.) This is not the same as de novo review. Under independent review “ ‘ “the credibility of witnesses the [superior court] heard and observed” ’ are entitled to particular deference, even though courts reviewing such claims generally may ‘ “reach a different conclusion [from the trial court] on an independent examination of the evidence . . . even where the evidence is conflicting.” ’ ” (Ibid.) However, “[w]here . . . the facts derive entirely from written declarations and other documents . . . ‘[t]he trial court and this court are in the same position in interpreting written declarations’ when reviewing a cold record in a section 1473.7 proceeding.” (Id. at p. 528.) Thus, we defer to the trial judge’s factual findings based on live testimony but need not defer to factual findings based on the trial judge’s review of the record. Because neither side presented any live testimony at the hearing in this case, we are not obligated to defer to the trial judge’s factual findings.

To begin with, Prasad is right that the judge’s decision below was premised on a faulty understanding of the facts. The judge found Prasad’s claim he would not have accepted the plea in his 2005 case not credible in part because the existence of his 2007 case meant he would have been ineligible for probation and faced stiff penalties had he gone to trial. This is obviously impossible. When Prasad pled in 2005, he had not yet been convicted of his 2007 crime. Indeed, that conviction wasn’t even pending. Contrary to the judge’s assertions, the 2007 charge would not have increased the potential penalties Prasad faced had he gone to trial. Accordingly, the judge’s assessment of Prasad’s credibility—and therefore of the entire prejudice question—is in error. Since the facts come from written declarations and other documents, we need not defer to his factual findings. Instead, we take up the question ourselves without reference to the trial judge’s factual determinations.

On the question of error, we find Prasad has demonstrated he was not advised of the immigration consequences of his 2005 plea. The only evidence in favor of his adequate advisal is the signed plea form and acknowledgement on the record that he went over the plea form with his attorney. Thus, there is no question that Prasad was not properly admonished of the immigration consequences of his plea by the judge. (See § 1016.5, subd. (a).)

Even if he had been properly admonished by the judge, this would not have been enough to cure the error. This is because as a court’s “generic advisement under section 1016.5 is not designed, nor does it operate, as a substitute for” the specific advice defense counsel is obligated to give. (People v. Patterson (2017) 2 Cal.5th 885, 898.) Here, the evidence doesn’t support finding his attorney properly advised him. Even if Prasad’s attorney did effectively communicate the contents of the plea form, that isn’t sufficient. (People v. Soriano (1987) 194 Cal.App.3d 1470, 1478-1479.) In People v. Soriano the court considered whether an attorney’s advisement regarding immigration consequences was so deficient as to constitute ineffective assistance of counsel—a much higher standard for error than involved here. The moving party’s counsel testified she advised her client “ ‘in a general sense, that is, the same language that is used in the admonition I used in court, that such a plea could have consequences on his immigration status, his naturalization, deportation and exclusion from admission.’ ” (Id. at p. 1479.) The court held that “[e]ven assuming counsel’s version of events is the correct one, her response to defendant’s immigration questions was insufficient,” because “she merely warned defendant that his plea might have immigration consequences,” and further research would have revealed his sentence made him deportable. (Id. at p. 1482.) Thus, even if Prasad’s counsel did go through the plea form with him, the form’s boilerplate advisement that “this conviction may have the consequences of deportation” was not sufficient advice from a constitutional perspective, let alone under section 1473.7.

Turning to the prejudice question, we conclude Prasad met his burden to show the above errors damaged his “ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of” his plea. (§ 1473.7 subd. (a)(1).) There is considerable evidence Prasad still misunderstood the immigration consequences of his plea when he violated his probation in 2007. At the hearing on the probation violation, his attorney told the court “Prasad has expressed to me that he believes that by sentencing him on this case alone to a year or more, would end in deportation.” This was not true. Prasad’s original conviction for possession of a controlled substance other than marijuana rendered him deportable regardless of the length of the sentence. (8 U.S.C. § 1227(a)(2)(B)(i).) This on-the-record misunderstanding is compelling evidence both that Prasad didn’t meaningfully understand his plea when he made it, and that immigration consequences were important enough to him that it is reasonably probable he wouldn’t have entered the plea had he understood. That is, Prasad’s negotiation regarding his probation violation demonstrates that immigration was a serious enough concern for him in 2007 that he went out of his way to request what he believed to be an immigration-neutral disposition then. We have no reason to believe immigration consequences became more important to him after 2005, and no reason to believe his misunderstanding over the immigration consequences of his plea started only after he made it. Therefore, this evidence sufficiently establishes that Prasad both misunderstood his conviction and that immigration consequences were important enough to him that it is reasonably probable he would not have pled as he did if he’d understood the immigration consequences of the plea.

This is further corroborated by looking at the additional factors set out in Mejia and Vivar. At the time of his plea Prasad had numerous family members in the United States—three children, a wife who was born in the United States, his mother who is a naturalized United States citizen, as well as “brothers, sisters, aunts, uncles, cousins, nieces and nephews.” In short, Prasad’s family resides in the United States, and it is therefore credible he would prioritize immigration concerns over other concerns when making a plea deal.

The People argue Prasad cannot establish prejudice in part because he has not identified any avenue he could’ve used to obtain a better outcome from an immigration standpoint. In particular, the People argue that Prasad fails to identify what factual basis exists for him to plead to something other than drug possession, which is a deportable offense. However, “the test for prejudice considers what the defendant would have done, not what the effect of that decision would have been.” (Martinez, supra, 57 Cal.4th at p. 564.) An error prejudices someone if “there is a reasonable probability that the person would not have pleaded guilty—and would have risked going to trial (even if only to figuratively throw a ‘Hail Mary’)—had the person known that the guilty plea would result in mandatory and dire immigration consequences.” (Mejia, supra, 36 Cal.App.5th at p. 871, italics omitted.)

The People also point to two newer cases, People v. Bravo (2021) 69 Cal.App.5th 1063 (Bravo), review granted December 15, 2021, S271782, and People v. Abdelsalam (2022) 73 Cal.App.5th 654 (Abdelsalam), which they say support their position. However, both are distinguishable on the facts.

In Bravo, defendant pled to domestic violence charges in order to avoid being fired from his job and possibly deported in an ICE sweep of the jail. (Bravo, supra, 69 Cal.App.5th at p. 1069.) He later claimed he didn’t understand the immigration consequences of the plea, and “ ‘[h]ad he known the true immigration consequences, he would have made arrangements for the short-term care of his child and [his child’s] mother, rather than risk the ability to care for them in the long[]term and be denied the opportunity to raise his son or see him grow up.’ ” (Id. at pp. 1076-1077.) Our court concluded that his claims lacked credibility because his declaration contained only boilerplate averments he would have acted differently, his desire to provide for his wife and child—if sincere—also suggested getting out of jail quickly was a top priority, and finally because “the events to which he pleaded guilty in 1997 were domestic violence and child cruelty felonies against [his] girlfriend and son, undercutting any claim now that he would have put himself in immediate peril of deportation in 1997 by a pending ICE sweep at the jail in order to go to trial in an attempt to avoid later immigration consequences.” (Id. at pp. 1067-1077.) On top of that, Bravo’s ties to the United States were minimal, since he immigrated as an adult and had only been in the country for just over four years at the time of the plea. (Id. at p. 1076.)

Here, unlike in Bravo, there is some evidence outside Prasad’s declaration supporting his claim that he didn’t understand the consequences of his plea when he made it. In addition, his ties to the country were more significant, and the incentives for staying out of custody less acute.

Abdelsalam is even more unlike Prasad’s case. To begin with, Abdelsalam’s case was intimately tied to immigration. Abdelsalam came to the United States on a fiancé visa, but was convicted for stalking and domestic violence related crimes against his ex-fiancée after she found out he planned to divorce her upon obtaining legal immigration status. (Abdelsalam, supra, 73 Cal.App.5th at pp. 658-661.) While taking his plea, the trial court advised Abdelsalam that his plea “ ‘will result in your deportation.’ ” (Id. at p. 664.) When asked if he understood, defendant replied “ ‘[y]es, I understand. I’m just going to wait for immigration.’ ” (Id. at p. 663.) The reviewing court concluded Abdelsalam did understand the immigration consequences of his plea because in context “the comment that he would ‘wait for immigration’ makes perfect sense. . . . He would need to finish serving the balance of his custody while waiting for ‘immigration’ (ICE) to pick him up from jail to be deported.” (Id. at pp. 663-664.) The reviewing court also concluded Abdelsalam didn’t demonstrate prejudice, as he presented no contemporaneous evidence he would’ve rejected the plea, no evidence that an immigration-neutral deal was available, and had only just arrived in the United States on a fraudulent visa with the intent to gain citizenship by deception. (Id. at p. 665.)

Thus, in Abdelsalam there was evidence above and beyond the defendant’s assent to boilerplate advisement—including the defendant’s own on-the-record statement—contradicting his claim that he didn’t understand that his plea carried immigration consequences. No such evidence exists here.

These cases are examples of how the lack of contemporaneous or record evidence supporting a petitioner’s claims might prevent them from meeting their burden—as in Bravo—or how the presence of contradictory information can undermine their claim—as in Abdelsalam. Neither circumstance exists here. Prasad points to evidence in the record suggesting he misunderstood his plea to his detriment, and the only evidence contradicting this is Prasad’s assent to boilerplate advisements. This case is thus distinguishable from both Bravo and Abdelsalam, precisely because it falls within the borders Bravo and Abdelsalam help define.

In short, Prasad met his burden here to demonstrate that even if the deck was stacked against him, had he known of the immigration consequences of his plea he would not have pled. Given his mistaken attempts to avoid immigration consequences from his probation violation, we consider it reasonably probable that had he known of these consequences he would have tried anything he could—up to and including a “Hail Mary” trial—to avoid immigration consequences.

Accordingly, we conclude Prasad has demonstrated an error affecting his ability to “meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty” under section 1473.7, and that it’s reasonably probable he would not have pled as he did if he’d been advised properly.

III

DISPOSITION

We reverse the order denying defendant’s section 1473.7 motion to vacate his conviction and remand with directions to grant the motion and permit him to withdraw his plea.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH

J.

We concur:

RAMIREZ

P. J.

McKINSTER

J.

[1] In his opening brief Prasad also asked us to vacate his 2007 probation violation under section 1473.7. However, in his reply brief Prasad conceded and withdrew this argument, so we do not address it.